In August of 2014, U.S. District Judge Robert L. Hinkle found that Florida’s ban on same-sex marriages violated the provisions of the US Constitution. He placed a stay on his ruling until appeals (and requests for further stays) could be filed with higher courts. No extended stays were granted and Judge Hinkle’s stay expires todayon Monday, January 5th.

Washington County Clerk Lora Bell’s requested that Judge Hinkle direct her as to whether this ruling applies only to the plaintiffs, and the state Attorney General asked whether the ruling applied to all county clerks. Yesterday Judge Hinkle provided clarification regarding those to whom his ruling applied.

Hinkle’s order was slightly nuanced and illustrates the care that judges go through to apply not only the spirit of the law, but its technical structure and authorities. There are three major points in what he said

The technical response

In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants.

Because there were no other parties in the lawsuit and because it was not a class action lawsuit, the rules of the court do not compel this clerk to issue licenses to any other couples.

The real response

Then the judge followed with the clencher:

But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

In other words, Hinkle is saying, “I’m not the one compelling you to issue this license. The US Constitution compels you to do so. So hell yes! Follow the law!”

The threat

And he preceded this by “clarifying” what would happen to those county clerks who decided that Hinkle’s ruling doesn’t apply to them and that they could just ignore the US Constitution’s protections.

History records no shortage of instances when state officials defied federal court orders on issues of federal constitutional law. Happily, there are many more instances when responsible officials followed the law, like it or not. Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

Hinkle warned them that if they want to be obstructionist, additional plaintiffs could sue, the case could become a class action, it could be determined by preliminary injunction (almost immediately), and the cost of all of this will come out of that clerk’s budget. In synopsis, Hinkle said that his ruling may be followed by all courts to all same-sex couples. Further, while it could be technically ignored, this is merely a short-term defiance of the US Constitution and an expensive one, at that.

Attorney General Pam Bondi issued a ‘proceed at your own risk’ statement, indicating that she will not be participating in any efforts to defy the judge:

Following significant public confusion about the federal-court injunction, the court today granted the clerk of court’s request for clarification. In the order, the court specified that the injunction does not require a clerk to issue licenses to same-sex couples other than the plaintiffs, but the court stated that “a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case.” Attorney General Bondi’s statement is as follows:

“This office has sought to minimize confusion and uncertainty, and we are glad the Court has provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed.”

The law firm advising the Florida Association of Court Clerks and Comptrollers had, before the clarification, advised counties not to follow the ruling. Yesterday they issued an advisory opposite of their earlier opinion and recommended that clerks offer licenses. “Judge Hinkle’s order states that any clerk refusing to issue a license could be subject to civil damages and liability for the plaintiffs’ fees and costs,”

“Judge Hinkle’s ruling is being widely misinterpreted. It clearly says that only the clerk Washington County is required to issue a marriage license and only to the two persons in that case. Judge Hinkle has no jurisdiction outside of the Northern District of Florida to bind any clerk outside of North Florida. Clerk’s outside of North Florida are required to obey the current law and are still subject to all the penalties of a first-degree misdemeanor for violating it,” said John Stemberger, president and general counsel of the Florida Family Policy Council.

In a highly anticipated ruling to clarify an August preliminary injunction in the federal case Brenner v. Scott, the district judge agreed with Liberty Counsel that the injunction does not require Florida clerks of court outside Washington County to issue marriage licenses to same-sex couples on January 6. Indeed, the new order clarifies that the injunction is limited to the plaintiffs in the case, expressly holding, “The preliminary injunction now in effect thus does not require the [Washington County] Clerk to issue licenses to other applicants.”

Misinterpretation is definitely going on. But it isn’t by the Attorney General, the law firm advising the clerks, or the newspapers. To see this as a “victory” for anti-gay forces requires a special kind of blinders and more than a little willingness to deceive oneself and others.

Irrespective of the declarations by anti-gays, the end result will be that starting tomorrowon Tuesday, many counties will be granting marriage licenses to same sex couples. Others may not do so immediately, and they engage in a costly and futile legal entanglement before they, too, do so.

This doesn’t mean smooth sailing. Already some clerks have changed their policies to discontinue all marriage ceremonies conducted by the clerk or at the courthouse – be they same-sex or opposite-sex – based on their religious beliefs that whatever else you do, you must never treat your neighbor how you wish to be treated. But that is likely to be only a minor inconvenience as clergy step in to fill that role.

For all practical purposes, marriage equality has finally come to Florida.

Fascinating.
That formerly well-regarded law firm certainly didn’t waste one nanosecond before seizing on this as a way to mitigate the damage done by one of their ‘opinions’.
Whether that was an isolated individual, acting much as that individual did at Amazon a few years back or whether the entire firm is in the hands of people who hate gays remains to be seen.
One thing is certain, though – they’ve made life more difficult for their attorneys when representing clients pleading ‘sincere religious belief’ as grounds for gay bashing.
Government officers who previously relied on them are also going to think a time or two before following their ‘advice’ on matters which place the US Constitution on one side and ‘sincere religious belief’ on the other.

I read Judge Hinklel’s response carefully and thoroughly. It left me with the impression that, 1) he won’t dumb his language down to suit certain much-married, er-‘ladies’- who happen to be AGs in their spare time and, two, he would love nothing more than to see a clerk be arrogant enough to try his patience.

As would I, actually, It would cause even more harm to a law-firm which is out to hurt us, it would turn Bondi’s ‘may’ into a laugh-getting moment of derision before the court as the gay-bashing clerk brings her ‘ruling’ forward as trumping that of the judge and it would settle up front the whole Kansas style problem we all know is coming: You may be ‘married’, but we won’t recognize it for your taxes, your licenses, nothing.

If I sat on the clerk and comptrollers’ committee on professional relations, I’d be looking for another law-firm pretty damn quick.

All that’s left now is for the hate-driven pastors to refrain from telling their parishioners to attack gay men on Tuesday. If we can get past that hurdle, Florida might actually become a turning point in the fight for the South.

It’s a fascinating insight into how the minds of people in such Biblically conservative organisations like Liberty Counsel work.

They have no trouble excising the sentence that fits their opinion and completely ignoring the context that contradicts. In fact, the very next sentence after mention of how the junction applies to the original plaintiff couple clarifies how the ruling itself applies to eveybody.

The ruling has gone against what Liberty Counsel wants, so they find the form of words that works for them somewhere in the text and decide that the agreeable part necessarily represents the whole, and that the disagreeable parts must therefore be wrong and not count.

Neil: They’re propagandists as much (or more) than anything else. Editing reality is what propagandists do for a living. And they know damned well that the choir they’re preaching to is not going to read the actual ruling.

A note: even those clerks who have decided not to host courthouse weddings will be required to issue licenses. And who’s to stop people from getting married on the courthouse steps?

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